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U.S. v. COX

March 11, 2002

UNITED STATES OF AMERICA
V.
JAMES B. COX, DEFENDANT.



The opinion of the court was delivered by: Mordue, District Judge.

MEMORANDUM-DECISION AND ORDER

I. Introduction

II. Discussion

The Court addresses defendant's multiple requests for relief seriatim.

A. Suppression of Physical Evidence

Defendant seeks suppression of evidence seized at his home and from his computer on the basis that the search warrants issued in this case were not supported by probable cause. To wit, his counsel avers that the "subscriber information" defendant provided to America OnLine ("AOL") to obtain his internet account and user name was private and that there was no probable cause to support the warrant issued by the Municipal Court of Xenia, Ohio which allowed police to obtain a billing address from AOL for the "screen name" used by defendant in trading pornographic images of children. Defendant has provided no factual averments to support his contention that he had a reasonable or legitimate expectation of privacy in the subscriber information he provided to AOL. Rather, the only "facts" concerning his alleged entitlement to privacy are presented by defendant's counsel who has no personal knowledge in this case. See United States v. Barrios, 2000 WL 419940, *1, 210 F.3d 355 (2d Cir. 2000) (defendant moving for suppression of evidence must support motion with papers which are "sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question, including an affidavit from someone alleging personal knowledge of the relevant facts.)" (emphasis added). An affidavit submitted by a defense attorney without personal knowledge of the facts is insufficient. See id; see also United States v. Belin, 2000 WL 679138 (S.D.N.Y. 2000); United States v. Harris, 2000 WL 1229263 (S.D.N.Y. 2000); United States v. Jailall, 2000 WL 1368055 (S.D.N.Y. 2000); and United States v. Jones, 2000 WL 1448640 (S.D.N.Y. 2000).

As a further matter, defendant provides no legal authority for his contention that he was entitled to privacy insofar as the subscriber information he provided to AOL. Perhaps that is because courts have already held that criminal defendants have no Fourth Amendment privacy interest in subscriber information given to an internet service provider. See United States v. Kennedy, 81 F. Supp.2d 1103, 1110 (Kan. 2000) (defendant's constitutional rights were not violated when Road Runner divulged his subscriber information to government; defendant did not demonstrate objectively reasonable legitimate expectation of privacy in his subscriber information) (citing Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)) ("[W]hat a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection."); Smith v. Maryland, 442 U.S. 735, 743-44, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) ("[A] person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.").

Defendant avers further that the warrant executed by United States Magistrate Judge Gary L. Sharpe which allowed the Federal Bureau of Investigation ("FBI") to search defendant's home and seize his personal computer among other things was not supported by probable cause since the allegations in the warrant application were "stale" and did not establish probable cause that the computer activity related to the AOL account billed to defendant's residence was actually occurring at the residence. The Court disagrees.

In assessing whether probable cause supported the issuance of the warrant, a Court must consider whether, under the totality of the circumstances, the application in support of the warrant contained two factual showings: "first, that a crime was committed, and second, that there is probable cause to believe that evidence of such crime is located at the residence." United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983); Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "In considering the quantum of evidence required, it is only a probability, and not a prima facie showing of criminal activity that is the standard of probable cause." Travisano, 724 F.2d at 346. Once a magistrate judge determines that probable cause exists, a reviewing court accords great deference to that determination. See Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Martin, 157 F.3d 46, 52 (2d Cir. 1998); Illinois v. Gates, 462 U.S. at 236, 103 S.Ct. 2317.

"In determining whether probable cause exists, the magistrate is required to assess whether the information adduced in the application appears to be current, i.e., true at the time of the application, or whether it has become stale." Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991). Where an affidavit contains facts indicating that the suspected activity is continuing in nature and when the property is not likely to be destroyed, the passage of time between the receipt of the information and the search becomes less significant in assessing probable cause United States v. Smith, 9 F.3d 1007, 1014 (2d Cir. 1993). In child pornography cases, courts have repeatedly recognized that collectors of child pornography tend to retain this material. As Senior District Judge Munson of this District noted:

The observation that images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes is supported by common sense and the cases. Since the materials are illegal to distribute and possess, initial collection is difficult. Having succeeded in obtaining images, collectors are unlikely to quickly destroy them. Because of their illegality and the imprimatur of severe social stigma such images carry, collectors will want to secret them in secure places, like a private residence. This proposition is not novel in either state or federal courts: pedophiles, preferential child molesters, and child pornography collectors maintain their materials for significant periods of time.

United States v. Lamb, 945 F. Supp. 441, 460 (N.D.N.Y. 1996); see also United States v. Ricciardelli, 998 F.2d 8, 12, n. 4 (1st Cir. 1993) ("[h]istory teaches that collectors [of child pornography] prefer not to dispose of their dross, typically retaining obscene materials for years"); United States v. Hay, 231 F.3d 630, 633-36 (9th Cir. 2000), cert. denied, ___ U.S. ___, 122 S.Ct. 135, 151 L.Ed.2d 88 (2001) (probable cause to believe child pornography would be found in defendant's computer despite passage of six months from single transmission of nineteen computer graphic files containing child pornography to defendant's computer because affidavit explained that collectors of child pornography rarely if ever dispose of it, and because affidavit explained how, even if defendant had deleted files, they could still be retrieved by computer expert).

In this case, the warrant affidavit submitted by Special Agent Derrane of the FBI averred that the user of the AOL account in question, who had received numerous images of child erotica and child pornography over an almost three-year period, would likely retain the images he collected and that these images could be retrieved by a forensic computer analysis. Moreover, the affidavit, which detailed the daily AOL account activity, "most notably between 6 ...


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